Assesment of the state’s postive obligations in the cases of the European court of human rights against Lithuania

Lina Urbaitė

Abstract

The newest tendencies in the practice of the European Court of Human Rights ( ECHR) show that the question of positive obligations since the case of Marckx v. Belgium (1979) has developed rapidly, especially in the sphere of private life. There is no express definition of positive obligations, but as a key characteristic, a duty to take actions may be emphasised. The principle of effectiveness also serves as a tool for the identification of positive obligations. However, it is sometimes hard to distinguish positive and negative obligations because applicable principles are similar - in both cases the fair balance between competing interests must be considered. The newest case-law of the ECHR shows that with regard to the growth of the standards of human rights, the requirements of high quality legislation and administrative practice are instituted, thereby imposing increasing burdens on states.Jurisprudence of the ECHR in cases against Lithuania, as much as it concerns positive obligations, may be divided into 3 categories: inadequate conditions at prisons (Karalevičius, Savenkovas cases), ineffective investigation and failure to guarantee procedural rights (Juozaitienė & Bikulčius, Sadauskienė, Peleckas, Jucius & Juciuvienė, Gulijev cases) and inadequate legal regulation of the right to private life. Te latter includes the limitation of the maximum amount of non-pecuniary damages for the breach of privacy, and the inability to undergo full gender reassignment and have a new identity acknowledged due to the failure to adopt necessary legislation (Armonas, Biriuk and L cases).All these groups relate to different measures that have to be adopted and implemented in order to increase the effectiveness of enjoyment of the rights guaranteed by the European Convention on Human Rights (hereinafter – the Convention). As regards prison conditions, the violations found showed that the biggest problem is overcrowding in places of detention. In order to guarantee that a detention corresponds to Article 3, it is very important to try to readjust the established standards and to have regard for the CPT reports. In order to fulfil procedural positive obligations, it is substantially important to carry out timely, operative, impartial, comprehensive and public investigation of violations of rights under the Convention and also to guarantee a right to a fair trial. In light of the identified violations of Article 8, Lithuania currently has but one issue, albeit a sensitive and controversial one. The issue of concern is the situation of transsexuals, who according to the Civil Code have legitimate expectations to have gender reassignment and acknowledgement of their new gender. If the situation with compensation of non-pecuniary damage has been remedied by adopting a new Civil Code and relevant amendments of the Law on provision of information to the public, the situation of transsexuals is more complex. Lithuania has chosen to pay reparation of damages. However, there is still a pending obligation to execute judgement in the L case and in order to fulfil general remedies, Lithuania may be asked to adopt necessary legislation. In light of a clear lack of legislative will, it may become necessary to revoke relevant provisions of the Civil Code that determine the right to gender reassignment.In recognition of the dynamic interpretation of the Convention, it must be noted that the concept of positive obligations is quite ambiguous. Therefore, in order to guarantee the effective enjoyment of rights and freedoms under the Convention, as well as to fulfil the state’s positive obligations, these general aspects are essential: verification of the compatibility of domestic law with the Convention, establishment and improvement of domestic remedies, invoking the Convention at domestic courts and rapid execution of ECHR’s judgements.

Keywords

the European Convention on Human Rights; the European Court of Human Rights; positive obligations; principle of effectiveness; freedom of discretion; fair balance; execution of the ECHR decisions